This week we saw the case of Michelle Cox win her ET against racial discrimination (Ms Cox V NHS England / NHS commissioning board). The outcomes are a shockingly embarrassing read for many of us but sadly not unfamiliar to many. Subtle discrimination and harassment are commonplace, but sadly what is even more common when many of us witnessing it will not speak out and those experiencing it are unlikely to be able to challenge it in such a successful way as Ms Cox has. Some will dismiss it saying “that’s just how it is”, ” there’s nothing I can do”, and “it will only get worse if I say anything”, as we are told by some who join NMCWatch. The insidious nature of this workplace culture has not so much crept in as never been stomped out and it is all of our responsibilities to speak up and support rather than stay silent or close our eyes.
I attended a meeting with Naomi from Equality 4 Black Nurse and she sweetly pointed out to me, that as a white woman, I can never understand these issues and I agree. I have no understanding of what this must be like and as I reassure myself that “I’m not racist” I have to check in and ask myself some difficult questions. Exploring my prejudices and challenging myself, ensuring I am always asking myself “am I doing enough?” I have to remind myself that the answer may well be no.
Rarely is the discrimination so blatant as we heard in this case. Those joining NMCWatch with protected characteristics tell us that they have rarely felt those characteristics protected. Frequently dismissed for being the only one who has said this, paranoid, sensitive, wrong, or stupid. Hushed conversations in the staff room or giggling at racist comments of a patient, validated by their silence give impact daily. Many tell of the fear of speaking up, the insidious acceptance by all that this is just how it is, and isolated they have experienced when they have stood their ground. Often discrimination, harassment, or abject racism is being either enabled by managers, ignored, or incited by making it more and more impossible to gather any evidence to be able to escalate further. Therefore when having to give the NMC this evidence to demonstrate any context around their referral, they stumble and fall – “how can I give evidence of a behavior, a thought, or how they made me feel …”, we have heard time and time again.
“I have grown tired of writing about organisations who insist that staff have to show that the treatment they have been subjected to was deliberate race discrimination or harassment – even when those staff produce convincing evidence of poor treatment for which no credible explanation other than racism exists. The “requirement” to show that discrimination is intentional if it is to be proven is a common, deliberate and unwarranted obstacle to fair treatment which Courts have grown increasingly critical of.”
Certainly, we see this in the NMC example – why can the disclosure of racism not be enough, when the registrant tells their case officer or investigator? Why must they show strong evidence for any weight to be put on it when the evidence provided of the supposed misconduct is equally non-existent but given more gravitas? Other more eminent colleagues will be able to explain more eloquently than me, the intricacies around others bringing such cases forward and the impossible nature of proving the thoughts, feelings passive, and actual aggression showed by the perpetrators. When members of our group have come to the end of their case, with no sanction or no case to answer, they are relieved it is “over”. However, usually, this is just the start. One of the biggest parts of the struggle to heal is the anger associated with what brought them in front of the regulator in the first place and why the one organization that is in a position to hear ALL evidence, does nothing when areas of abuse such as racism have contributed or in some circumstance, driven the referral to them in the first place.
Statements from the NMC when raising these themes will come back in frustrating apathy:
“…we appreciate how distressing this has been for you, but regulatory concerns were raised and despite you presenting contextual evidence, we had a duty to investigate…”
A regulatory investigation, both currently and as done for some considerable time, will always come from an immediate perspective of giving those that refer registrants higher kudos, weight, and validation. This is either through the initial conversations with case investigators or by the mere fact that a case is launched, the registrant is informed of the process and the process commenced. This is further validated when an interim order hearing occurs and the registrant is subject to a risk assessment, based purely on the nature of allegations, determining that whilst the case is investigated they are suspended from practice.
Some weeks or even months down the line, they will then ask the registrant for an initial response to allegations and perhaps the completion of a context form. But this will not be at a parallel timeframe to asking for supporting evidence from the referrer or any gathering of intelligence from other sources to see if there is any discrimination motivating the referral. The context form is a great first step in the NMC’s new “person-centred approach” but how can a registrant, scarred by not only the treatment they have experienced in the workplace but also now by the NMC process itself, demonstrate on paper the true depth and impact that the racism or other discrimination has had on them. If at this point there was a neutral investigator who also heard the initial referral, and then continued in that neutrality to gather all information, there may be some hope of a second victim response not being suffered by the registrant.
The context form may be completed by the registrant, they may disclose aspects of discrimination and the stress this caused them, either contributing to mistakes or conflict at work. But NMCWatch is yet to see, as soon as this context is sent to the NMC, the investigation paused and a more in-depth information-gathering mechanism started, that ensures the neutrality of the investigation. The NMC will argue that their responsibility is to ensure those nurses and midwives working, are not failing in their responsibility underpinned by the code of conduct. They will argue they are here to protect the public, ensure the register is upheld, and not to resolve or determine any workplace conflicts. Yet, the nurse or midwife will have disclosed this information in the faith, that their regulator will safeguard them, help them, and be their guiding light. The registrant will assume, as his or her professional body, they will have the skills and experience to treat all information that is brought to them or with the associated skill to decipher. Instead, when reaching out to this centre for excellence, their precious intelligence on the history of all that has occurred leading up to the referral is either brushed aside, ignored, or actively disagreed with. Subsequently, the nurse is yet again abused reaffirming once again that the registrant is on their own, unsupported, and misunderstood. This associated trauma will reach further beyond the closure of the case.
Following this latest tribunal, we at NMCWatch are concerned as to what will happen next.
There is a wider responsibility here, other than the power of the courts when enlisted by brave professionals such as Ms Cox. Regulators must swiftly step in to address the next steps when such a monumental spotlight has been shone. Previously, the NMC has vowed to improve in many ways and has continued this vow when publicity arises on failing to deal with racism by professionals. Surely for an organization with such a powerful role, fairness, advocacy, and integrity should be at its heart? Is this a symptom of regulation per se or specific to how our nursing and midwifery regulator behaves? Is there any motivation to change?
For the nurse or midwife who has spoken up in the workplace about discrimination whether racially motivated or through other biases, promising to do better soon, will not be of any comfort to them. Here’s what some in our group said:
“I spoke up about how my colleagues were being treated differently to me, I was embarrassed and knew it shouldn’t happen. A black colleague, Ima, went for the promotion, she hasn’t worked on the ward long but it was obvious she was far more skilled and capable of the role than the other colleague who went to interview. Our white colleague got the job and then proceeded to treat Ima so badly that I couldn’t stay quiet. When I complained I was told I couldn’t so so what did I know about racism, as I was white and British??!!”
“… people are too afraid to investigate or challenge accusations. On the receiving end of this allegation, it feels like a person can call racism and it is treated as fact regardless without investigation.”
“I made some really bad comments on a work night out, I’ve done a lot of work around unconscious bias and have learned a lot about myself, I hope I am given a second chance.”
“I’m so tired of having to explain how it felt to be treated that way and what else I could have done to make sure my managers understood the racism I was experiencing. Why should I have to explain? It makes you feel yet again that it is pointless, if the NMC doesn’t understand it then what hope is there.”
An article in the nursing press in 2021 highlighted that 75 referrals for racism were made to the NMC in 2020 compared to four in 2015; it was explained that the rise was thought to show a greater willingness to report racist behaviour. Those numbers still seem very low. The article was not clear what the outcomes of these referrals were or indeed how many were dismissed or indeed the quality of the investigations to establish the outcome.
In response to the publication on social media of the outcome of Ms Cox’s case, the NMC has said they will be considering the tribunal conclusions to determine if any further action is required against the registrants identified as being culpable. These registrants hold senior positions within their organizations so it will be important to observe how the NMC determine if an investigatory case is needed to be opened on them. It is surprising, however, as the ET tribunal describes specific evidence of racism demonstrated by at least 4 registrants with very specific examples given. Cases have been opened on registrants with less evidence.